Exhibit 10.1
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENTis entered into as of March 14, 2012 betweenCoBANK, ACB("CoBank") andSOUTH DAKOTA SOYBEAN PROCESSORS, LLC, Volga, SouthDakota(the "Company").
BACKGROUND
CoBank and the Company are parties to a Master Loan Agreement dated May 3, 2010, as amended (the "Existing Agreement"). Pursuant to the terms of the Existing Agreement, the parties entered into one or more Supplements thereto. CoBank and the Company now desire to amend andrestate the Existing Agreement and to apply such new agreement to the existing Supplements, as well asany new Supplements that may be issued thereunder. For that reason and for valuable consideration (thereceipt and sufficiency of which are hereby acknowledged), CoBank and the Company hereby agree thatthe Existing Agreement shall be amended and restated to read as follows:
SECTION 1. Supplements.In the event the Company desires to borrow from CoBank andCoBank is willing to lend to the Company, or in the event CoBank and the Company desire to consolidate any existing loans hereunder, the parties will enter into a Supplement to this agreement (a "Supplement").Each Supplement will set forth the amount of the loan, the purpose of the loan, the interest rate or rateoptions applicable to that loan, the repayment terms of the loan, and any other terms and conditions applicable to that particular loan. Each loan will be governed by the terms and conditions contained inthis agreement and in the Supplement relating to the loan. As of the date hereof, the followingSupplements are outstanding hereunder and shall be governed by the terms and conditions hereof: (A)the Monitored Revolving Credit Supplement dated November 10, 2011 and numbered RIB051S01O; (B) the Revolving Term Loan Supplement dated November 10, 2011 and numbered RIB051T05I; and (C) theRevolving Credit Supplement (Letter of Credit) dated November 10, 2011 and numbered RIB051T06F.
SECTION 2. Availability.Loans will be made available on any day on which CoBank andthe Federal Reserve Banks are open for business upon the telephonic or written request of the Company.Requests for loans must be received no later than 12:00 Noon Company's local time on the date the loan is desired. Loans will be made available by wire transfer of immediately available funds to such accountor accounts as may be authorized by the Company. The Company shall furnish to CoBank a dulycompleted and executed copy of a CoBank Delegation and Wire and Electronic Transfer AuthorizationForm, and CoBank shall be entitled to rely on (and shall incur no liability to the Company in acting on)any request or direction furnished in accordance with the terms thereof.
SECTION 3. Repayment.The Company's obligation to repay each loan shall be evidenced bythe promissory note set forth in the Supplement relating to that loan or by such replacement note asCoBank shall require. CoBank shall maintain a record of all loans, the interest accrued thereon, and all payments made with respect thereto, and such record shall, absent proof of manifest error, be conclusiveevidence of the outstanding principal and interest on the loans. All payments shall be made by wiretransfer of immediately available funds, by check, or by automated clearing house or other similar cashhandling processes as specified by separate agreement between the Company and CoBank. Wire transfers shall be made to ABA No. 307088754 for advice to and credit of CoBank (or to such other
account as CoBank may direct by notice). The Company shall give CoBank telephonic notice no laterthan 12:00 Noon Company's local time of its intent to pay by wire and funds received after 3:00 p.m. Company's local time shall be credited on the next business day. Checks shall be mailed to CoBank,Department 167, Denver, Colorado 80291-0167 (or to such other place as CoBank may direct by notice). Credit for payment by check will not be given until the later of: (A) the day on which CoBank receivesimmediately available funds; or (B) the next business day after receipt of the check.
SECTION 4. Capitalization.The Company agrees to acquire equity in CoBank in suchamounts and at such times as CoBank may from time to time require in accordance with its Bylaws and Capital Plan (as each may be amended from time to time), except that the maximum amount of equity thatthe Company may be required to purchase in connection with a loan may not exceed the maximumamount permitted by the Bylaws at the time the Supplement relating to such loan is entered into or such loan is renewed or refinanced by CoBank. The rights and obligations of the parties with respect to such equity and any patronage or other distributions made by CoBank shall be governed by CoBank's Bylawsand Capital Plan (as each may be amended from time to time).
SECTION 5. Security.The Company's obligations under this agreement, all Supplements(whenever executed), and all instruments and documents contemplated hereby or thereby, shall besecured by a statutory first lien on all equity which the Company may now own or hereafter acquire in CoBank. In addition, the Company's obligations under each Supplement (whenever executed) and thisagreement shall be secured by a first lien (subject only to exceptions approved in writing by CoBank)pursuant to all security agreements, mortgages, and deeds of trust executed by the Company in favor ofCoBank, whether now existing or hereafter entered into. As additional security for those obligations: (A) the Company agrees to grant to CoBank, by means of such instruments and documents as CoBank shallrequire a first priority lien on such of its other assets, whether now existing or hereafter acquired, as CoBank may from time to time require; and (B) the Company agrees to grant to CoBank, by means of such instruments and documents as CoBank shall require, a first priority lien on all realty which theCompany may from time to time acquire after the date hereof.
SECTION 6. Conditions Precedent.
(A)Conditions to Initial Supplement.CoBank's obligation to extend credit under theinitial Supplement hereto is subject to the conditions precedent that CoBank receive, in form and contentsatisfactory to CoBank, each of the following:
This Agreement, Etc.A duly executed copy of this agreement and all instruments anddocuments contemplated hereby.
(B)Conditions to Each Supplement.CoBank's obligation to extend credit under each Supplement, including the initial Supplement, is subject to the conditions precedent that CoBank receive,in form and content satisfactory to CoBank, each of the following:
(1) Supplement.A duly executed copy of the Supplement and all instruments anddocuments contemplated thereby.
(2) Evidence of Authority.Such certified board resolutions, certificates ofincumbency, and other evidence that CoBank may require that the Supplement, all instruments anddocuments executed in connection therewith, and, in the case of initial Supplement hereto, this agreementand all instruments and documents executed in connection herewith, have been duly authorized andexecuted.
(3) Fees and Other Charges.All fees and other charges provided for herein or inthe Supplement.
(4) Evidence of Perfection, Etc. Such evidence as CoBank may require thatCoBank has a duly perfected first priority lien on all security for the Company's obligations, and that theCompany is in compliance with Section 8(D) hereof.
(C) Conditions to Each Loan.CoBank's obligation under each Supplement to make anyloan to the Company thereunder is subject to the condition that no "Event of Default" (as defined inSection 11 hereof) or event which with the giving of notice and/or the passage of time would become anEvent of Default hereunder (a "Potential Default"), shall have occurred and be continuing.
SECTION 7. Representations and Warranties.
(A)This Agreement.The Company represents and warrants to CoBank that as of the dateof this agreement:
(1) Compliance.The Company and, to the extent contemplated hereunder, each "Subsidiary" (as defined below), is in compliance with all of the terms of this agreement, and no Event ofDefault or Potential Default exists hereunder.
(2) Subsidiaries.The Company has the following "Subsidiary(ies)" (as definedbelow): Urethane Soy Systems Company. For purposes hereof, a "Subsidiary" shall mean a corporationof which shares of stock having ordinary voting power to elect a majority of the board of directors orother managers of such corporation are owned, directly or indirectly, by the Company.
(B)Each Supplement.The execution by the Company of each Supplement hereto shall
constitute a representation and warranty to CoBank that:
(1) Applications.Each representation and warranty and all information set forth inany application or other documents submitted in connection with, or to induce CoBank to enter into, suchSupplement, is correct in all material respects as of the date of the Supplement.
(2) Conflicting Agreements, Etc.This agreement, the Supplements, and allsecurity and other instruments and documents relating hereto and thereto (collectively, at any time, the"Loan Documents"), do not conflict with, or require the consent of any party to, any other agreement towhich the Company is a party or by which it or its property may be bound or affected, and do not conflictwith any provision of the Company's bylaws, articles of incorporation, or other organizational documents.
(3) Compliance.The Company and, to the extent contemplated hereunder, each Subsidiary, is in compliance with all of the terms of the Loan Documents (including, without limitation,Section 8(A) of this agreement on eligibility to borrow from CoBank).
(4) Binding Agreement.The Loan Documents create legal, valid, and bindingobligations of the Company which are enforceable in accordance with their terms, except to the extentthat enforcement may be limited by applicable bankruptcy, insolvency, or similar laws affecting creditors'rights generally.
SECTION 8. Affirmative Covenants.Unless otherwise agreed to in writing by CoBank whilethis agreement is in effect, the Company agrees to and with respect to Subsections 8(B) through 8(G)hereof, agrees to cause each Subsidiary to:
(A) Eligibility.Maintain its status as an entity eligible to borrow from CoBank.
(B) Corporate Existence, Licenses, Etc.(1) Preserve and keep in full force and effect itsexistence and good standing in the jurisdiction of its incorporation or formation; (2) qualify and remain qualified to transact business in all jurisdictions where such qualification is required; and (3) obtain andmaintain all licenses, certificates, permits, authorizations, approvals, and the like which are material to theconduct of its business or required by law, rule, regulation, ordinance, code, order, and the like (collectively, "Laws").
(C) Compliance with Laws.Comply in all material respects with all applicable Laws, including, without limitation, all Laws relating to environmental protection and any patron or member investment program that it may have. In addition, the Company agrees to cause all persons occupying orpresent on any of its properties, and to cause each Subsidiary to cause all persons occupying or present onany of its properties, to comply in all material respects with all environmental protection Laws.
(D) Insurance.Maintain insurance with insurance companies or associations acceptable toCoBank in such amounts and covering such risks as are usually carried by companies engaged in thesame or similar business and similarly situated, and make such increases in the type or amount ofcoverage as CoBank may request. All such policies insuring any collateral for the Company's obligationsto CoBank shall have mortgagee or lender loss payable clauses or endorsements in form and contentacceptable to CoBank. At CoBank's request, all policies (or such other proof of compliance with thisSubsection as may be satisfactory to CoBank) shall be delivered to CoBank.
(E)Property Maintenance.Maintain all of its property that is necessary to or useful inthe proper conduct of its business in good working condition, ordinary wear and tear excepted.
(F)Books and Records.Keep adequate records and books of account in which completeentries will be made in accordance with generally accepted accounting principles ("GAAP") consistentlyapplied.
(G) Inspection.Permit CoBank or its agents, upon reasonable notice and during normalbusiness hours or at such other times as the parties may agree, to examine its properties, books, andrecords, and to discuss its affairs, finances, and accounts, with its respective officers, directors, employees, and independent certified public accountants.
(H) Reports and Notices.Furnish to CoBank:
(1)Annual Financial Statements.As soon as available, but in no event more than90 days after the end of each fiscal year of the Company occurring during the term hereof, annualconsolidated and consolidating financial statements of the Company and its consolidated Subsidiaries, ifany, prepared in accordance with GAAP consistently applied. Such financial statements shall: (a) beaudited by independent certified public accountants selected by the Company and acceptable to CoBank; be accompanied by a report of such accountants containing an opinion thereon acceptable to CoBank; be prepared in reasonable detail and in comparative form; and (d) include a balance sheet, a statementof income, a statement of retained earnings, a statement of cash flows, and all notes and schedules relating thereto.
(2) Interim Financial Statements.As soon as available, but in no event more than30 days after the end of each month, a consolidated balance sheet of the Company and its consolidatedSubsidiaries, if any, as of the end of such month, a consolidated statement of income for the Companyand its consolidated Subsidiaries, if any, for such period and for the period year to date, and such otherinterim statements as CoBank may specifically request, all prepared in reasonable detail and incomparative form in accordance with GAAP consistently applied and, if required by written notice fromCoBank, certified by an authorized officer or employee of the Company acceptable to CoBank.
(3) Notice of Default.Promptly after becoming aware thereof, notice of the occurrence of an Event of Default or a Potential Default.
(4) Notice of Non-Environmental Litigation.Promptly after the commencementthereof, notice of the commencement of all actions, suits, or proceedings before any court, arbitrator, or governmental department, commission, board, bureau, agency, or instrumentality affecting the Company or any Subsidiary which, if determined adversely to the Company or any such Subsidiary, could have amaterial adverse effect on the financial condition, properties, profits, or operations of the Company or anysuch Subsidiary.
(5) Notice of Environmental Litigation, Etc.Promptly after receipt thereof, notice of the receipt of all pleadings, orders, complaints, indictments, or any other communication alleging acondition that may require the Company or any Subsidiary to undertake or to contribute to a cleanup orother response under environmental Laws, or which seek penalties, damages, injunctive relief, or criminal sanctions related to alleged violations of such Laws, or which claim personal injury or property damage toany person as a result of environmental factors or conditions.
(6) Bylaws and Articles.Promptly after any change in the Company's bylaws orarticles of incorporation, or membership and marketing agreement (or like documents), copies of all suchchanges, certified by the Company's Secretary.
(7) Compliance Certificates.Together with each set of financial statementsfurnished to CoBank pursuant to Subsection (H)(2) hereof for a period corresponding to a period forwhich one or more of the financial covenants set forth in Section 10 hereof are required to be tested, acertificate of an officer or employee of the Company acceptable to CoBank setting forth calculationsshowing compliance with each of the financial covenants that require compliance at the end of the periodfor which the statements are being furnished.
(8) Other Information.Such other information regarding the condition oroperations, financial or otherwise, of the Company or any Subsidiary as CoBank may from time to timereasonably request, including but not limited to copies of all pleadings, notices, and communicationsreferred to in Subsections 8(H)(4) and (5) above.
SECTION 9. Negative Covenants.Unless otherwise agreed to in writing by CoBank, whilethis agreement is in effect the Company will not:
(A) Borrowings.Create, incur, assume, or allow to exist, directly or indirectly, anyindebtedness or liability for borrowed money (including trade or bankers' acceptances), letters of credit,or the deferred purchase price of property or services (including capitalized leases), except for: (1) debtto CoBank; (2) accounts payable to trade creditors incurred in the ordinary course of business; (3) currentoperating liabilities (other than for borrowed money) incurred in the ordinary course of business; (4)indebtedness of the Company under its member or patron investment program, provided, however, thatsuch indebtedness is expressly stated to be subordinate in right of payment to all obligations of theCompany to CoBank; and (5) debt of the Company to miscellaneous creditors in an amount not to exceed$300,000.00.
(B) Liens.Create, incur, assume, or allow to exist any mortgage, deed of trust, pledge, lien(including the lien of an attachment, judgment, or execution), security interest, or other encumbrance ofany kind upon any of its property, real or personal (collectively, "Liens"). The forgoing restrictions shallnot apply to: (1) Liens in favor of CoBank; (2) Liens for taxes, assessments, or governmental chargesthat are not past due; (3) Liens and deposits under workers' compensation, unemployment insurance, andsocial security Laws; (4) Liens and deposits to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), and like obligations arising in the ordinary course of businessas conducted on the date hereof; (5) Liens imposed by Law in favor of mechanics, materialmen, warehousemen, and like persons that secure obligations that are not past due; (6) easements, rights-of-way, restrictions, and other similar encumbrances which, in the aggregate, do not materially interfere withthe occupation, use, and enjoyment of the property or assets encumbered thereby in the normal course of its business or materially impair the value of the property subject thereto; and (7) Liens in favor ofmiscellaneous creditors to secure indebtedness permitted hereunder.
(C) Mergers, Acquisitions, Etc.Merge or consolidate with any other entity or acquire allor a material part of the assets of any person or entity, or form or create any new Subsidiary or affiliate, orcommence operations under any other name, organization, or entity, including any joint venture.
(D)Transfer of Assets.Sell, transfer, lease, or otherwise dispose of any of its assets,except in the ordinary course of business.
(E) Loans and Investments.Make any loan or advance to any person or entity, or purchase any capital stock, obligations or other securities of, make any capital contribution to, orotherwise invest in any person or entity, or form or create any partnerships or joint ventures except: (1)trade credit extended in the ordinary course of business; and (2) loans or advances by the Company toUrethane Soy Systems in an aggregate principal amount not to exceed $8,500,000.00 at any one timeoutstanding.
(F)Contingent Liabilities.Assume, guarantee, become liable as a surety, endorse,contingently agree to purchase, or otherwise be or become liable, directly or indirectly (including, but notlimited to, by means of a maintenance agreement, an asset or stock purchase agreement, or any other agreement designed to ensure any creditor against loss), for or on account of the obligation of any personor entity, except by the endorsement of negotiable instruments for deposit or collection or similartransactions in the ordinary course of the Company's business.
(G)Change in Business.Engage in any business activities or operations substantiallydifferent from or unrelated to the Company's present business activities or operations.
(H) Dividends, Etc.Declare or pay any dividends, or make any distribution of assets tothe stockholders, or purchase, redeem, retire or otherwise acquire for value any of its capital stock, or allocate or otherwise set apart any sum for any of the foregoing, except that in any fiscal year of theCompany, the Company may pay dividends in an amount up to 35% of its consolidated net income for theprior fiscal year, provided that no Event of Default or Potential Default shall have occurred and becontinuing or would result therefrom.
(I)Leases.Create, incur, assume, or permit to exist any obligation as lessee underoperating leases which should be capitalized in accordance with GAAP for the rental or hire of any real orpersonal property, except: (1) leases of soybean oil storage tank space with aggregate annual paymentsnot to exceed $400,000.00; (2) leases of up to 437 tanker and/or hopper railroad cars under terms and conditions acceptable to CoBank; (3) Leases of other railroad cars, excluding those allowed in (2) above, with original maturities of less than sixty (60) months at the Company's discretion; and (4) other leases,excluding those allowed above, which do not in the aggregate require the Company to make scheduledpayments to the lessors in any fiscal year of the company during the term hereof in excess of $800,000.00.
SECTION 10. Financial Covenants.Unless otherwise agreed to in writing, while this agreement is in effect:
(A) Working Capital.The Company and its consolidated Subsidiaries will have an excessof consolidated current assets over consolidated current liabilities (both as determined in accordance withGAAP consistently applied) of not less than: (1) $8,000,000.00 at the end of each fiscal year of theCompany; and (2) $5,500,000.00 at the end of each other period for which financial statements arerequired to be furnished pursuant to Section 8(H) hereof, except that in determining consolidated currentassets, any amount available under the Revolving Term Loan Supplement (less the amount that would be considered a current liability under GAAP if fully advanced) hereto may be included.
(B) Debt Service Coverage Ratio.The Company and its consolidated Subsidiaries willhave at the end of each fiscal year of the Company a "Debt Service Coverage Ratio" (as defined below)for such year of not less than 1.2 to 1.0. For purposes hereof, the term "Debt Service Coverage Ratio"shall mean the following (all as calculated on a consolidated basis for the most current year end inaccordance with GAAP consistently applied): (1) net income (after taxes), plus depreciation andamortization, minus non-cash patronage income, minus extraordinary gains (+ losses), minus gain (+ loss)on asset sale; divided by (2) all current portion of long term debt for the prior period (previous year-end).
SECTION 11. Events of Default.Each of the following shall constitute an "Event of Default"under this agreement:
(A) Payment Default.The Company should fail to make any payment to, or to purchaseany equity in, CoBank when due.
(B) Representations and Warranties.Any representation or warranty made or deemedmade by the Company herein or in any Supplement, application, agreement, certificate, or other documentrelated to or furnished in connection with this agreement or any Supplement, shall prove to have beenfalse or misleading in any material respect on or as of the date made or deemed made.
(C) Certain Affirmative Covenants.The Company or, to the extent required hereunder, any Subsidiary should fail to perform or comply with Sections 8(A) through 8(H)(2), 8(H)(6), 8(H)(7) or any reporting covenant set forth in any Supplement hereto, and such failure continues for 15 days afterwritten notice thereof shall have been delivered by CoBank to the Company.
(D) Other Covenants and Agreements.The Company or, to the extent requiredhereunder, any Subsidiary should fail to perform or comply with any other covenant or agreementcontained herein or in any other Loan Document or shall use the proceeds of any loan for an unauthorizedpurpose.
(E)Cross-Default.The Company should, after any applicable grace period, breach or bein default under the terms of any other agreement between the Company and CoBank, or between theCompany and any affiliate of CoBank, including without limitation Farm Credit Leasing ServicesCorporation.
(F)Other Indebtedness.The Company or any Subsidiary should fail to pay when dueany indebtedness to any other person or entity for borrowed money or any long-term obligation for thedeferred purchase price of property (including any capitalized lease), or any other event occurs which,under any agreement or instrument relating to such indebtedness or obligation, has the effect ofaccelerating or permitting the acceleration of such indebtedness or obligation, whether or not suchindebtedness or obligation is actually accelerated or the right to accelerate is conditioned on the giving ofnotice, the passage of time, or otherwise.
(G) Judgments.A judgment, decree, or order for the payment of money shall be renderedagainst the Company or any Subsidiary and either: (1) enforcement proceedings shall have beencommenced; (2) a Lien prohibited under Section 9(B) hereof shall have been obtained; or (3) suchjudgment, decree, or order shall continue unsatisfied and in effect for a period of 20 consecutive dayswithout being vacated, discharged, satisfied, or stayed pending appeal.
(H)Insolvency, Etc. The Company or any Subsidiary shall: (1) become insolvent or shallgenerally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they comedue; or (2) suspend its business operations or a material part thereof or make an assignment for the benefitof creditors; or (3) apply for, consent to, or acquiesce in the appointment of a trustee, receiver, or other custodian for it or any of its property or, in the absence of such application, consent, or acquiescence, a trustee, receiver, or other custodian is so appointed; or (4) commence or have commenced against it anyproceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, orliquidation Law of any jurisdiction.
(I) Material Adverse Change.Any material adverse change occurs, as reasonablydetermined by CoBank, in the Company's financial condition, results of operation, or ability to performits obligations hereunder or under any instrument or document contemplated hereby.
(J) Revocation of Guaranty.Any guaranty, suretyship, subordination agreement,maintenance agreement, or other agreement furnished in connection with the Company's obligationshereunder and under any Supplement shall, at any time, cease to be in full force and effect, or shall berevoked or declared null and void, or the validity or enforceability thereof shall be contested by theguarantor, surety or other maker thereof (the "Guarantor"), or the Guarantor shall deny any furtherliability or obligation thereunder, or shall fail to perform its obligations thereunder, or any representation or warranty set forth therein shall be breached, or the Guarantor shall breach or be in default under theterms of any other agreement with CoBank (including any loan agreement or security agreement), or a default set forth in Subsections (F) through (H) hereof shall occur with respect to the Guarantor.
SECTION 12.Remedies.Upon the occurrence and during the continuance of an Event ofDefault or any Potential Default, CoBank shall have no obligation to continue to extend credit to theCompany and may discontinue doing so at any time without prior notice. For all purposes hereof, theterm "Potential Default" means the occurrence of any event which, with the passage of time or the giving of notice or both would become an Event of Default. In addition, upon the occurrence and during thecontinuance of any Event of Default, CoBank may, upon notice to the Company, terminate anycommitment and declare the entire unpaid principal balance of the loans, all accrued interest thereon, and all other amounts payable under this agreement, all Supplements, and the other Loan Documents to be immediately due and payable. Upon such a declaration, the unpaid principal balance of the loans and allsuch other amounts shall become immediately due and payable, without protest, presentment, demand, orfurther notice of any kind, all of which are hereby expressly waived by the Company. In addition, uponsuch an acceleration:
(A) Enforcement.CoBank may proceed to protect, exercise, and enforce such rights andremedies as may be provided by this agreement, any other Loan Document or under Law. Each and everyone of such rights and remedies shall be cumulative and may be exercised from time to time, and nofailure on the part of CoBank to exercise, and no delay in exercising, any right or remedy shall operate asa waiver thereof, and no single or partial exercise of any right or remedy shall preclude any other orfuture exercise thereof, or the exercise of any other right. Without limiting the foregoing, CoBank mayhold and/or set off and apply against the Company's obligation to CoBank the proceeds of any equity in CoBank, any cash collateral held by CoBank, or any balances held by CoBank for the Company's account (whether or not such balances are then due).
(B) Application of Funds.CoBank may apply all payments received by it to the company's obligations to CoBank in such order and manner as CoBank may elect in its sole discretion.In addition to the rights and remedies set forth above: (1) upon the occurrence and during thecontinuance of an Event of Default, then at CoBank's option in each instance, the entire indebtednessoutstanding hereunder and under all Supplements shall bear interest from the date of such Event ofDefault until such Event of Default shall have been waived or cured in a manner satisfactory to CoBank at4.00% per annum in excess of the rate(s) of interest that would otherwise be in effect on that loan; and(2) after the maturity of any loan (whether as a result of acceleration or otherwise), the unpaid principalbalance of such loan (including without limitation, principal, interest, fees and expenses) shallautomatically bear interest at 4.00% per annum in excess of the rate(s) of interest that would otherwise be in effect on that loan. All interest provided for herein shall be payable on demand and shall be calculatedon the basis of a year consisting of 360 days.
SECTION 13. Broken Funding Surcharge.Notwithstanding any provision contained in anySupplement giving the Company the right to repay any loan prior to the date it would otherwise be dueand payable, the Company agrees to provide three Business Days' prior written notice for anyprepayment of a fixed rate balance and that in the event it repays any fixed rate balance prior to its scheduled due date or prior to the last day of the fixed rate period applicable thereto (whether such payment is made voluntarily, as a result of an acceleration, or otherwise), the Company will pay toCoBank a surcharge in an amount equal to the greater of: (A) an amount which would result in CoBank being made whole (on a present value basis) for the actual or imputed funding losses incurred by CoBank as a result thereof; or (B) $300.00. Notwithstanding the foregoing, in the event any fixed rate balance is repaid as a result of the Company refinancing the loan with another lender or by other means, then in lieuof the foregoing, the Company shall pay to CoBank a surcharge in an amount sufficient (on a presentvalue basis) to enable CoBank to maintain the yield it would have earned during the fixed rate period onthe amount repaid. Such surcharges will be calculated in accordance with methodology established by CoBank (a copy of which will be made available to the Company upon request).
SECTION 14. Complete Agreement, Amendments.This agreement, all Supplements, and allother instruments and documents contemplated hereby and thereby, are intended by the parties to be acomplete and final expression of their agreement. No amendment, modification, or waiver of anyprovision hereof or thereof, and no consent to any departure by the Company herefrom or therefrom, shallbe effective unless approved by CoBank and contained in a writing signed by or on behalf of CoBank,and then such waiver or consent shall be effective only in the specific instance and for the specificpurpose for which given. In the event this agreement is amended or restated, each such amendment orrestatement shall be applicable to all Supplements hereto.
SECTION 15. Other Types of Credit.From time to time, CoBank may issue letters of creditor extend other types of credit to or for the account of the Company. In the event the parties desire to doso under the terms of this agreement, such extensions of credit may be set forth in any Supplement heretoand this agreement shall be applicable thereto.
SECTION 16. Applicable Law.Without giving effect to the principles of conflict of laws andexcept to the extent governed by federal law, the Laws of the State of Colorado, without reference tochoice of law doctrine, shall govern this agreement, each Supplement and any other Loan Documents forwhich Colorado is specified as the applicable law, and all disputes and matters between the parties to this agreement, including all disputes and matters whatsoever arising under, in connection with or incident tothe lending and/or leasing or other business relationship between the parties, and the rights andobligations of the parties to this agreement or any other Loan Documents by and between the parties forwhich Colorado is specified as the applicable law.
SECTION 17. Notices.All notices hereunder shall be in writing and shall be deemed to be dulygiven upon delivery if personally delivered or sent by telegram or facsimile transmission, or three days after mailing if sent by express, certified or registered mail, to the parties at the following addresses (orsuch other address for a party as shall be specified by like notice):
If to CoBank, as follows If to the Company, as follows:
| For general correspondence purposes: | South Dakota Soybean Processors, LLC |
| P.O. Box 5110 | Box 500 |
| Denver, Colorado 80217-5110 | Volga, South Dakota 57071 |
| | |
| For direct delivery purposes, when desired: | |
| 5500 South Quebec Street | |
| Greenwood Village, Colorado 80111-1914 | |
| | |
| Attention: Credit Information Services | Attention: CEO |
| Fax No.: (303)224-6101 | Fax No.: (605) 6275869 |
SECTION 18. Taxes and Expenses.To the extent allowed by law, the Company agrees to payall reasonable out-of-pocket costs and expenses (including the fees and expenses of counsel retained oremployed by CoBank) incurred by CoBank and any participants from CoBank in connection with the origination, administration, collection, and enforcement of this agreement and the other Loan Documents,including, without limitation, all costs and expenses incurred in perfecting, maintaining, determining thepriority of, and releasing any security for the Company's obligations to CoBank, and any stamp,intangible, transfer, or like tax payable in connection with this agreement or any other Loan Document.
SECTION 19. Effectiveness and Severability.This agreement shall continue in effect until:(A) all indebtedness and obligations of the Company under this agreement, all Supplements, and all otherLoan Documents shall have been paid or satisfied; (B) CoBank has no commitment to extend credit to orfor the account of the Company under any Supplement; and (C) either party sends written notice to theother terminating this agreement. Any provision of this agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof.
SECTION 20. Successors and Assigns.This agreement, each Supplement, and the other LoanDocuments shall be binding upon and inure to the benefit of the Company and CoBank and theirrespective successors and assigns, except that the Company may not assign or transfer its rights orobligations under this agreement, any Supplement or any other Loan Document without the prior writtenconsent of CoBank.
SECTION 21. Participations, Etc.From time to time, CoBank may sell to one or more banks,financial institutions, or other lenders a participation in one or more of the loans or other extensions ofcredit made pursuant to this agreement. However, no such participation shall relieve CoBank of anycommitment made to the Company hereunder. In connection with the foregoing, CoBank may discloseinformation concerning the Company and its Subsidiaries, if any, to any participant or prospectiveparticipant, provided that such participant or prospective participant agrees to keep such information confidential. Patronage distributions in the event of a sale of a participation interest shall be governed byCoBank's Bylaws and Capital Plan (as each may be amended from time to time). A sale of aparticipation interest may include certain voting rights of the participants regarding the loans hereunder(including without limitation the administration, servicing, and enforcement thereof). CoBank agrees togive written notification to the Company of any sale of a participation interest.
SECTION 22. Amendment Fee.In consideration of the amendment, the Company agrees topay to CoBank on the execution hereof, a fee in the amount of $7,500.00.
IN WITNESS WHEREOF,the parties have caused this agreement to be executed by their dulyauthorized officers as of the date shown above.
| CoBANK, ACB | | SOUTH DAKOTA SOYBEAN PROCESSORS, LLC |
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| By: | | | By: | /s/ Thomas J. Kersting |
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| Title: | | | Title: | Chief Executive Officer |
